Center for Inquiry Mixed on Finalized Birth Control Rule

July 1, 2013

The Department of Health and Human Services (HHS) on Friday issued a finalized birth control rule, which requires all employers — apart from houses of worship and religiously affiliated organizations — to provide employees contraceptive coverage without charging a co-payment. The announcement marks the end of a nearly two-year regulatory battle between HHS officials and advocacy groups, including the Center for Inquiry (CFI).

CFI is pleased that the finalized rule ensures most employed women in the United States will have access to birth control. However, we are disappointed that HHS caved to sectarian religious lobbying efforts and gave more concessions to religiously affiliated organizations than required by law.

As you might recall, HHS announced the birth control rule on August 1, 2011, based on recommendations from the Institute of Medicine (IOM), saying that providing birth control at no cost (as an "Essential Health Benefit" under the Patient Protection and Affordable Care Act) could increase individuals' well-being and lower health care costs. The original rule applied to all employers; only houses of worship were exempt. It faced immediate and fierce opposition from sectarian religious groups, such as the U.S. Conference of Catholic Bishops, which urged HHS to either eliminate the rule or else widely expand the exemption clause to include religiously affiliated organizations, such as hospitals, charities, and universities.

On February 15, 2012, HHS attempted to accommodate these continuing religious objections by announcing that it would allow religiously affiliated organizations to choose not to offer contraceptive coverage directly, and instead require insurers to provide such coverage. CFI condemned this accommodation on the grounds that it was unwarranted and unwise. Several months later, on June 11, 2012, CFI submitted formal comments to HHS urging the agency to finalize the mandate as it was before the proposed changes, arguing HHS was justified on both scientific and constitutional grounds. Yet HHS adopted the proposed changes.

To make matters worse, on February 1, 2013, HHS announced another round of proposed changes that would broaden the definition of "religious employer" for exempt organizations, and pare down the accommodation process for religiously affiliated organizations. CFI was concerned with the proposed changes and, on April 8, 2013, submitted formal comments to HHS detailing why proposed changes should not be adopted.

Unfortunately, it appears HHS has adopted the bulk of these proposed changes. While CFI is still analyzing the 110-page outline of the final rule (there is a brief factsheet here), our initial reaction to Friday's announcement is a mixture of contentment and disappointment.

On one hand, CFI is pleased that HHS has resisted intense pressure to eliminate the rule, or else provide significantly broader exemptions and accommodations. The fact that HHS stood relatively firm against religious lobbying efforts ensured that hundreds of thousands of women will be guaranteed access to birth control.

However, CFI continues to believe that the various changes to the original rule are both unwarranted and unwise. In particular regard to this round of alterations, CFI is deeply troubled that HHS switched from a sound definition of "religious employer" to a much broader one for the exemption process; and that HHS adopted a vague self-certification process as part of the accommodation process. You can more about our objections in our formal comments.

As it turns out, these changes could actually doom the birth control rule. Dozens of lawsuits have been filed against the rule, at least one of which is expected to eventually reach the Supreme Court. And, as indicated in a recent ruling, some judges considering these cases have questions as to just how important the rule could be — how rational its basis could be — if the administration has so readily altered it to exclude groups from complying.

This is precisely why HHS should have listened to CFI at the outset, when we urged them to ignore sectarian religious lobbying efforts and finalize the rule in its original form. As we wrote in our most recent letter:

We believe that there is no need for — and no constructive point to — further discussion. This prolonged debate, over something as fundamental as birth control, is a perfect example of the harmful influence sectarian religious institutions have on public policy. It’s time for us to move past them, for the common good.

Today CFI welcomes the end of a regulatory battle that will end with hundreds of thousands of women receiving birth control coverage. However, we are aware there are still many legal battles to fight on the birth control rule -- and saddened that HHS might have hurt its own chances in these cases by caving to sectarian interests.

CFI remains committed to protecting women’s access to preventative reproductive care. We will keep our supporters updated moving forward as we work to accomplish this goal.

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Michael De Dora is director of the Center for Inquiry's Office of Public Policy and the organization's representative to the United Nations. In addition, he serves as president of the United Nations NGO Committee on Freedom of Religion or Belief.